By
Charles C. W. Cooke
Monday, May
22, 2023
Rich Lowry points to a column by Ezra Klein in
the New York Times, in which Klein objects to President Biden
taking the “14th Amendment option.” Rich notes that Klein has a practical
objection to the idea — namely that “if the administration declares the debt
ceiling unconstitutional, only to have the Supreme Court declare the maneuver
unconstitutional, then Biden owns the market chaos that would follow.”
This is
probably true. But it’s notable that, as usual, Klein and those who share his
politics seem to live in a completely lawless world, in which there is no such
thing as truth, in which ridiculous ideas that were arrived at yesterday by
transparent political hacks are as worthwhile as centuries of universal
understanding, and in which the only reason to avoid violating the Constitution
is that one might get caught.
Klein describes the “options” before Biden as
such:
In one, President Biden simply declares the debt ceiling
unconstitutional, pointing to the 14th Amendment, which holds that “the
validity of the public debt of the United States … shall not be questioned.”
Five Senate Democrats, including Bernie Sanders and Elizabeth Warren, are
circulating a letter calling on Biden to do just that. On Friday, 66
progressive congressional Democrats sent the president their own letter making
a similar case.
In the other, the Treasury Department uses a loophole in a 1997 law to
mint a platinum coin of any value it chooses — a trillion dollars, say — and
uses the new money to keep paying the government’s debts.
Then he
says:
In remarks after a meeting with House Speaker Kevin McCarthy, Biden said
he was “considering” the argument that the debt ceiling is unconstitutional.
The problem, he continued, is that “it would have to be litigated.” And that’s
the problem with all these ideas and why, in the end, it’s doubtful that Biden
— or any Democrat — will try them.
The legality of the debt ceiling or a trillion-dollar platinum coin
doesn’t depend on how liberals read the Constitution or the Coinage Act. It
depends on how three conservatives read it: John Roberts, Brett Kavanaugh and
Neil Gorsuch, who are the closest the Supreme Court now comes to having swing
justices.
This is
nihilism. Nobody — I will repeat nobody — believes that the
14th Amendment took the power of the purse away from Congress. President Biden
doesn’t believe it. The collection of legislators who are writing to Biden
don’t believe it. Laurence Tribe, who explained in 2011 why the claim is absurd
before he pretended to have changed his mind this
year, doesn’t believe it. There is no case here beyond necessity. This isn’t a
question of whether the plan is a good one or a bad one; the plan isn’t permissible
in the first place. We might as well have a debate about whether the president
should “decide” to serve a five-year term.
Klein
could say that. It would be easy for him to do so. But, because he’s a coward,
he can’t bring himself to do it. So he falls into line, echoes the idea that
the problem with the idea of the president usurping Article I of the
Constitution is that the usurpation “would have to be litigated” (well, yeah)
and then casts the dispute as if it’s just more quotidian politics: “The
legality of the debt ceiling or a trillion-dollar platinum coin doesn’t depend
on how liberals read the Constitution or the Coinage Act,” he writes, “it
depends on how three conservatives read it.”
Our
system cannot survive like this. There are, indeed, some parts of the
Constitution that are difficult to nail down. But this is not one of them. This
is the very core of our system. Article I is extremely clear on which
branch has the “Power To lay and collect Taxes, Duties, Imposts and Excises, to
pay the Debts” and “to borrow Money on the credit of the United States,” and
Section 4 of the 14th Amendment does not alter it in any way. Before 1868, “all
legislative Powers herein granted shall be vested in a Congress of the United
States.” After 1868, the same. For Klein to signal to his readers that the
threat to this settlement comes not from Biden, but from the possibility that
the Supreme Court might rule against the innovation — as he immediately goes on
to do — is irresponsible in the extreme.
“Irresponsible”
is putting it politely. Just over two years ago, Donald Trump attempted to
twist the texts of both the 1887 Electoral Count Act and the 12th Amendment to
the Constitution into something that they were not, in the hope that doing so
would help him stay in power illegitimately. In this endeavor, Trump was aided
by a handful of unscrupulous lawyers who, like Laurence Tribe, were
prepared to spend the duration of the fight lying about the law. Happily, Trump
failed — and one of the reasons for that was that enough people were willing to
say out loud that his case was obviously contrived and demonstrably wrong, and
they were willing to say so without weasel words, cynical insinuations, or
postmodern indifference. Those who pushed back hard against Trump and his
flunkies — including at this magazine, both before and after the election — did not argue
that “the problem” with Trump’s ridiculous claims was that they “would have to
be litigated,” or lament that “the legality doesn’t depend on how conservatives
read the Constitution.” They said that Trump was wrong. They said that he was
incorrect, lying, usurping, cheating. And they said so as a matter
of independent — and self-evident — judgment that was backed
up by more than a century of constitutional practice. They said, for example:
The president now says Vice President Pence has the unilateral authority
to invalidate state electoral votes that he decides are fraudulent. That is a
ridiculous claim. It is not enough to say that it finds no literal support in
the Constitution or any federal law. It is antithetical to the Constitution’s
core theory of separation of powers — both its vertical aspect, under which the
states are sovereign and the disposition of their electoral votes is left to
them alone; and its horizontal aspect, in which the branches of the federal
government check each other, and no single actor is permitted to accumulate
tyrannical power.
Why
can’t Klein do the same? What is it about American progressivism that folds
instantly in the face of preposterous legal sophistry? Why are left-leaning
journalists at prestigious outlets such as the Times so
utterly incapable of resisting the temptation to turn the law into sand? Why
does their supposed love of “democracy” — and that’s what this is about: voters
gave Republicans the House; Biden is trying to cut them out of the process —
stop the very moment that Republicans obtain a set of constitutionally
promulgated powers? In an 1803 letter to Wilson Cary Nicholas, Thomas Jefferson
warned that “our peculiar security is in the possession of a written
constitution. Let us not make it a blank paper by construction.” Once again,
Klein and his fellow travelers seem to be saying, “agreed, old boy — unless, of
course, we can get away with it this time.”
For shame.
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